1. Communitarianism and the Roberts Court
Professor Robert M. Ackerman
Wayne State University
School of Law

2. In the law, the language of individual rights comes easily while the language of community is more foreign.
Robert F. Cochran Jr. and Robert M. Ackerman, Law and Community: the Case of Torts (2004).

3. Communitarianism:
Seeks balance between individual rights and general welfare.
Recognizes that with rights come responsibilities.
Recognizes the value of intermediate communities.
Is inclusive, not exclusive.
Amitai Etzioni, The Spirit of Community

4. Origins of this work: Citizens United and Hobby Lobby.
District of Columbia v. Heller.
Should not overgeneralize:
Communitarian aspects of CU;
Nat’l Fed’n of Indep. Bus. v. Sebelius (Obamacare)
Obergefell v. Hodges

5. Expansion of rights:
Citizens United: Corporations have First Amendment rights.
Nothing new. E.g., New York Times v. Sullivan.
Hobby Lobby: Corporations have religious rights (arose under RFRA).
District of Columbia v. Heller: Second Amendment rights extend to individuals, not just militia.
CU and Hobby Lobby, while expanding rights, did so for intermediate communities, whereas Heller took what we thought was a community right and applied it to individuals.
Obergefell v. Hodges: Marital rights extend to gay couples.

6. Minting of new rights without concommitant responsibilities:
Citizens United, Hobby Lobby, Heller all expand rights at some cost to others.
Compare Obergefell: expands rights at no cost to others, while strengthening an important intermediate community: the family.

7. Deference to “carefully calibrated” legislative solutions:
Citizens United
Parents Involved in Community Schools v. Seattle School District No. 1 and Meredith v. Jefferson County Board of Education
Both districts classified race in binary terms so not altogether clear these solutions were carefully calibrated.
Compare:
Sebelius (including CJ’s role in maintaining consensus)
Whole Woman's Health v. Hellerstedt
Legislative rationale of protecting women’s health was pretext for restricting access to abortion

8. Inclusiveness and Access:
Parents Involved, Shelby County v. Holder
Excessive formalism
Iqbal, Wal-Mart, arbitration-by-ambush cases (e.g., Concepcion)
Compare Obergefell

9. Intermediate Communities:
CU, Hobby Lobby
Compare Harris v. Quinn
Refuses to apply Abood v. Detroit Board of Education (and hints at its reversal).
Friedrichs a close call
Robert Putnam, Bowling Alone
Unions as important (but disappearing) intermediate community

10. Individual rights and general welfare: not a zero-sum game
Bernard Mayer: The Conflict Paradox
Autonomy vs. community
Opportunities for courts more limited than for other branches.
Least restrictive alternative in First Amendment cases
McCutcheon v. Federal Election Com’n (2014): disclosure requirements as LRA.
Zubik v. Burwell (recent Obamacare case/Hobby Lobby progeny remanded for settlement).

11. In short, a communitarian view of constitutional adjudication would encourage and support the American experiment in liberal democracy.
Is this just a rehashing of the liberal take on the Supreme Court’s work?
I don’t think so. A look at some of the Court’s criminal procedure cases might bear that out.
E.g., Herring v. United States.
Communitarians would avoid gamesmanship, “gotcha” rules we sometimes see in post-Miranda cases.
Currently, exclusionary rule combined with restrictions on civil actions (mostly through immunities)  lose/lose situation. People lose their evidence, while officials who abuse constitutional rights enjoy immunity (subject to narrow exceptions).

12. Why does this matter?
Supreme Court as consensus-builder, setter of community norms.
We are a community that respects individual rights; we are also a community that promotes the general welfare; finally, we are an inclusive community of communities.
Court once had a broader center.
Unanimous decision in Brown v. Board of Education (1954).
Chief Justice as forger of consensus:
Warren in Brown;
Rehnquist in Dickerson v. U.S.;
Roberts in Sebelius.
Role of O’Connor, Kennedy

13. Obergefell v. Hodges 135 S.Ct. 2584, 2608 (2015)(Kennedy, J.)
No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization's oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.